First Department recognized retroactive validation of a permit.  In 2005, the Board of Standards and Appeals denied recognition of GRA V, LLC’s common law vested right to perform work under a Department of Buildings permit on the grounds Buildings deemed the underlying permit invalid.  (See CityLand’s extensive previous coverage here.)  A common law vested right occurs when a developer performs substantial work in reliance that the underlying permit or zoning is valid.  In 2011, the Board recognized the common law vested right after Buildings indicated its policy to allow an applicant to make minor amendments to plans in order to retroactively validate permits.  Fort Independence Park Neighborhood Association brought an Article 78 petition challenging the Board’s 2011 grant, alleging the Board’s determination was arbitrary and capricious.

On July 25, 2013 Justice Alison Y. Tuitt of Bronx County Supreme Court denied the Neighborhood Association’s petition, finding the Board presented affidavits, invoices, concrete pour tickets, and photographs demonstrating GRA V had already invested $475,000 into the property.  On appeal, First Department upheld the lower court ruling.  The court recognized, in the context of common law vesting, minor amendments to plans are permitted to cure errors and administrative irregularities, and to validate a permit retroactively.  The court also recognized the Board rationally determined GRA V proved a substantial financial expenditure, and that GRA V would suffer serious loss absent the common law vesting rights.

Fort Independence Park Neighborhood Ass’n v. Srinivasan, 2015 N.Y. Slip Op. 01749 (1st Dep’t, Mar. 3, 2015) (Attorneys: Padernacht Law, P.C., Daniel Padernacht of counsel, for appellants; Zachary W. Carter, Jane L. Gordon of counsel, for municipal respondents, Sheldon Lobel, P.C., Jordan Most of counsel, for GRA V, LLC).

By:  Michael Twomey (Michael is the CityLaw Fellow and a New York Law School graduate, Class of 2014).